McGowen v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1205V
UNPUBLISHED
PALESTINE MCGOWEN, Chief Special Master Corcoran
Petitioner, Filed: January 16, 2020
v.
SECRETARY OF HEALTH AND Special Processing Unit (SPU); Joint
HUMAN SERVICES, Stipulation on Damages; Influenza
(Flu) Vaccine; Shoulder Injury
Respondent. Related to Vaccine Administration
(SIRVA)
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.
Jeffrey T. Sprague, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
On August 14, 2018, Palestine McGowen filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a Shoulder Injury Related to
Vaccine Administration (“SIRVA”) as a result of her October 18, 2016 influneza (“flu”)
vaccination. Stipulation, filed January 15, 2020, at ¶¶ 2,4; see also Petition at 1-3.
Petitioner further alleges that the vaccine was administered within the United States,
that she suffered the residual effects of her injury for more than six months, and that
there has been no prior award or settlement of a civil action on her behalf as a result of
her injury. Stipulation at ¶¶ 3-5; Petition at ¶2, 12-14. “Respondent denies that
petitioner sustained a SIRVA Table injury and denies that petitioner’s alleged SIRVA
and its residual effects were caused-in-fact by her flu vaccine. Respondent further
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the ruling will be available to anyone with access to
the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
denies that the flu vaccine caused petitioner another injury or her current condition.
Stipulation at ¶ 6.
Nevertheless, on January 15, 2020, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. I find the stipulation
reasonable and adopt it as my decision awarding damages, on the terms set forth
therein.
Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:
A lump sum of $30,820.82 in the form of a check payable to Petitioner.
Stipulation at ¶ 8. This amount represents compensation for all items of
damages that would be available under § 15(a), to include $30,000.00 for pain
and suffering and $820.82 for out-of-pocket medical expenses. Id.
I approve the requested amount for Petitioner’s compensation. In the absence of
a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed
to enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
PALESTINE MCGOWEN, )
)
Petitioner, ) No. I 8-1205V ECF
)
v. ) Chief Special Master Corcoran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
---------------)
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Palestine McGowen, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to 34 (the "Vaccine
Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt
of the influenza ("flu") vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42
C.F.R. § 100.3(a).
2. On October 18, 2016 petitioner received a flu vaccine in the right arm.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a shoulder injury related to vaccine administration
("SIRVA"), and that she experienced symptoms of the injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of her alleged injuries.
6. Respondent denies that petitioner sustained a SIRVA Table injury and denies that
petitioner's alleged SIRVA and its residual effects were caused-in-fact by her flu vaccine.
Respondent further denies that the flu vaccine caused petitioner any other injury or her current
condition.
7. Maintaining their above-stated positions, the parties nevertheless now agree that the
issues between them shall be settled and that a decision should be entered awarding the
compensation described in paragraph 8 of this Stipulation.
8. As soon as practicable after an entry of judgment reflecting a decision consistent
with the terms of this Stipulation, and after petitioner has filed an election to receive
compensation pursuant to 42 U.S.C. § 300aa-21(a)(l), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $30,820.82, in the form of a check payable to petitioner. This
amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a), to include $30,000.00 for pain and suffering and $820.82
for out-of-pocket medical expenses.
9. As soon as practicable after the entry of judgment on entitlement in this case, and
after petitioner has filed both a proper and timely election to receive compensation pursuant to
42 U.S.C. Section 300aa-21(a)(l), and an application, the parties will submit to further
proceedings before the special master to award reasonable attorneys' fees and costs incurred in
proceeding upon this petition.
l 0. Petitioner and her attorney represent that compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be
expected to be made under any State compensation programs, insurance policies, Federal or
State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C.
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§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.
11. Payment made pursuant to paragraph 8 of this Stipulation, and any amounts
awarded pursuant to paragraph 9 of this Stipulation, will be made in accordance with 42 U.S.C.
§ 300aa-l 5(i), subject to the availability of sufficient statutory funds.
12. The parties and their attorneys further agree and stipulate that, except for any award
for attorneys' fees and litigation costs, and past unreimbursed expenses, the money provided
pursuant to this Stipulation will be used solely for the benefit of petitioner, as contemplated by a
strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C.
§§ 300aa-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in her
individual capacity and on behalf of her heirs, executors, administrators, successors or assigns,
does forever irrevocably and unconditionally release, acquit and discharge the United States and
the Secretary of Health and Human Services from any and all actions, causes of action (including
agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever
kind or nature) that have been brought, could have been brought, or could be timely brought in
the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or
unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or
alleged to have resulted from, the vaccine administered on October 18, 2016 as alleged by
petitioner in a petition for vaccine compensation filed on or about August 14, 2018, in the United
States Court of Federal Claims as petition No. 18- l 205V.
14. If petitioner should die prior to entry of judgment, this agreement shall be voidable
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upon proper notice to the Court on behalf of either or both of the parties.
15. If the special master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a
decision that is in complete conformity with the terms of this Stipulation, then the parties'
settlement and this Stipulation shall be voidable at the sole discretion of either party.
16. This Stipulation expresses a full a'.1d complete negotiated settlement of liability and
damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except
as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the
parties hereto to make any payment or to do any act or thing other than is herein expressly stated
and clearly agreed to. The parties further agree and understand that the award described in this
stipulation may reflect a compromise of the parties' respective positions as to liability and/or
amount of damages, and further, that a change in the nature of the injury or condition or in the
items of compensation sought, is not grounds to modify or revise this agreement.
17. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the vaccine received by petitioner either caused or
significantly aggravated petitioner's alleged injury or any other injury.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
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Respectfully submitted,
PETITIONER:
_pGLOu;))v;
PALESTINE MCGOWEN
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETIT ONER: OF THE ATTORNEY GENERAL:
C~ EV~S ~ --
uller Brazil, LLP Deputy Director
715 Twining Road, Suite 208 Torts Branch
Dresher, PA 19025 Civil Division
Tel: (215)-855-1655 P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT: -
AND HUMAN S~RVICES:
TAMARA OVERBY
Acting Director, Division of Injury 1al Attorn,ey
Compensation Programs orts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 08Nl46B Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616-4179
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Dated: / / (
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